(The American Catholic will observe its tenth anniversary in October. We will be reposting some classic TAC posts of the past. This post is from February 4, 2014. It seems appropriate to run this now, since yesterday the majority of the Supreme Court overruled the Korematsu decision. “The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—’has no place in law under the Constitution.’ )
In times of war the laws fall silent. That is from the Latin maxim Inter Arma Enim Silent Leges. A study of history reveals just how true that is, and Justice Scalia reminds us of that fact:
Scalia cited a Latin expression meaning “In times of war, the laws fall silent.”
Go here to read the rest.
Internment camps were set up after Pearl Harbor during the invasion scare. Several thousand Italian-Americans and eleven thousand German Americans were interned during the war, but these were individuals who were picked up because investigations indicated that they could be a domestic threat. The west coast  Japanese were simply scooped up with no individual investigations. J. Edgar Hoover, head of the FBI, opposed the internment of the Japanese, regarding it as completely unnecessary, but his views sadly were ignored. About 120,000 Japanese -Americans were interned during the war, the vast majority loyal Americans.
The Supreme Court upheld the constitutionality of the internment in the case of Korematsu v. United States. The vote was 6-3. Six out of the eight Supreme Court Justices appointed by FDR voted to affirm the constitutionality of the internment. The lone Republican on the court, Justice Owen Roberts, wrote a dissent which deserves to be remembered. It begins simply and directly:
On the same day as the ruling in Korematsu was handed down, the Supreme Court ruled the internment of loyal Americans unconstitutional in December of 1944 in the case of Ex Parte Endo. After the decision Japanese-Americans were free to leave the internment camps, although about a quarter of the internees had already left to live and work in areas of the country other than the west coast zones excluded to them, or by volunteering for military service. This decision was unanimous and Justice Roberts correctly pointed out that the two decisions contradicted each other.
What happened in World War II was not an aberration. Whenever this country has gone to war some infringement on civil liberties has occurred. Sometimes these infringements have been massive as occurred during the Revolution and the Civil War.
Inter arma enim silent leges was a phrase not uncommon in the North during the Civil War, a time when many cherished laws and safeguards of personal liberty did fall silent. In the aftermath of the War there was a return to peace time norms. This was reflected in the case of Ex parte Milligan, an 1866 Supreme Court case. Lambdin P. Milligan, one of the leaders of the Knights of the Golden Circle, a “secret” Confederate organization in the North that everyone in the North seemed to know about, in Indiana was arrested in 1864, accused of being involved in a plot with others who were also arrested, to free Confederate prisoners from a POW camp and with their aid seek to topple the government of Indiana. Milligan was tried by a military commission and sentenced to death. Showing their neutrality in regard to the Defendant, the military commissioners spoke at Republican party rallies in the fall of 1864.
The case was appealed to the United States Supreme Court. Benjamin Butler, always as competent as an attorney as he was incompetent as a general, argued the case for the government. The Defense had a high-powered team, including Jeremiah Black a former attorney general and Union general and congressman, and future president, James Garfield. The court handed down a unanimous decision as to reversal in 1866 authored by Lincoln’s old friend from Illinois, Justice David Davis, who Lincoln had appointed to the court. This striking passage in the decision indicated that with the ending of the War the court was going to be reasserting its role regarding the law.
Sometimes the law does sleep during war, and it is thus very important to reawaken the law during peace time.